Mediation 101 / ADR Systems

Mediation, Arbitration, Litigation, Differences, Ethics

Mediation is part of a wider field of alternative dispute resolution systems. All dispute resolution systems respond to a specific conflict style or dispute that needs to be resolved. Among many other variations, let’s focus on a the most important alternative dispute resolution systems in the field and let’s explore their strengths and limitations. Furthermore, the attempt will be to present the following in a cross-cultural context and within other frameworks.

1. Mediation vs Arbitration

Mediation is oftentimes confused with arbitration. The difference is that in arbitration the neutral arbitrator is empowered to render a decision for the parties. The power and authority to make the decision is in the hands of the arbitrator. In mediation, the neutral (depending on context and content as we will elaborate later) mediator has no power to render a decision; the power to make decisions is in the hands of the parties and it remains there until they reach a final agreement.

An arbitrator is comparable to the role of a judge – however without the structural enforcement by a judicial and governmental procedure. An arbitrator’s decision is binding, final and enforceable through the collection process. This decision is like a court judgement. Mediation, however, is a voluntary process. The parties can decide at any time to leave the mediation process. A mediator is more of a negotiator. Mediation is closer to negotiation. In the understanding of this framework, mediation is considered to be a negotiation process assisted (others say: facilitated) by the guidance and intervention of the neutral and impartial mediator. While negotiation is usually a one-on-one with the parties themselves, mediation introduces the dynamic of a neutral party dialogue leader.

Hence, arbitration is closer to litigation. In fact, arbitration is considered by some authors in the field of ADR an “adjudication”. The judging is done by an arbitrator instead of a judge or jury. Rules of procedure and evidence may or may not be in effect in arbitration. Arbitration differs from litigation in that there are no open courtrooms, public records, waiting periods, or rights to appeal. Nevertheless, a decision of the disputed case is deferred to a higher authority. Someone else is thus imposing the decision on the parties. In mediation, the parties are working out a solution for themselves with, through and under the assistance of a mediator. Mediation is an assisted problem-solving process. Arbitration and litigation, the parties surrender control of the outcome.

Mediation is most of the times referred to as a means of solving disputes through assisted negotiations or facilitated negotiation. There are mediators who incorporate directive, evaluative or transformative elements – and the literature abounds with debates over these elements as it will be demonstrated at a later stage of this chapter. However, facilitating negotiation is considered a core competence.

Arbitration manifests itself in a variety of forms, however they all involve private adjudication and referral of the case’s decision to a higher, selected authority.

Litigation is a combination of negotiation and litigation. Cases are filed to court, they are punctuated by trips to the courthouse for motion hearings or depositions for pre-trial discovery and then back to the bargaining procedure. Most of the times, a judge will render a decision.

Collaborative Practice means a process of negotiation in which at a minimum degree the parties and their counsel sign a participation agreement where all agree that the lawyers’ involvement in the case will be limited to advice and negotiation, and that if the negotiation fails and the case must go to court, the lawyers will withdraw and the parties will hire new counsel. Additional elements, such as information sharing, respectful communication, confidentiality, client participation in the process, interest-based negotiation, and the joint retention of experts are part of the participation agreement. Collaborative practice usually involves a series of four-way meetings in which both parties and both attorneys participate.

Cooperative Process Agreements are a new development in the ADR field. Unlike collaborative practice, there is no consensus at this point among practitioners regarding the essential elements of this process. However, it can be referred to as a process in which the parties and counsel sign a participation agreement that contains provisions similar to those of a Collaborative Practice agreement except for the withdrawal/disqualification provision (see sample agreement at http://www.bostonlawcollaborative.com/documents/2006-02-cooperative-process-agreement.pdf). Both Collaborative and Cooperative models create a similar container for negotiations and thus, like mediation, seek to create a safe and confidential place for conversations and agreements.

Many other terms and forms of hybridization between the legal field and other dispute resolution systems have occurred. However, the all the research to these models are still lacking the complexity of multi-lateral negotiation. Furthermore, mediation is the only conflict resolution method that creates a truly dialogical container for all the parties to be able to settle a conflict. Hence, this research work will be based on the elements of mediation in order to assess settlement procedures and decision-making processes in group-related conflicts.

Negotiation systems create a structure to encourage and facilitate direct negotiation between parties, groups or states without the actual intervention of a third party. Mediation and conciliation systems are very similar in that they intervene through a third party between the disputants, either to mediate a specific dispute or to reconcile their relationship. Arbitration systems authorize a third party to decide how a dispute should be resolved. It is important to distinguish between binding and non-binding forms of ADR. Negotiation, mediation and conciliation are non-binding and depend on the willingness of the parties to reach a voluntary agreement. Arbitration programs may be either binding or non-binding. Binding arbitration produces a third party decision that the disputants must follow, even if they disagree with the result, much like a judicial decision. Non-binding arbitration produces a third party decision that the parties may reject. Furthermore, the distinction also goes to differ between mandatory processes and voluntary processes. Some judicial systems require litigants to negotiate, conciliate, mediate or arbitrate prior to court action. ADR processes may also be required as past of a prior contractual agreement between the parties. In voluntary processes, submission of a dispute to an ADR process depends entirely on the will of the parties. These forms of ADR, and a variety of hybrids (see …. ) are described in the Taxonomy and the Glossary.

Although ADR is an important means in many conflict resolution activities, it might be ineffective in certain contexts, such as international crisis intervention and conflicts over resources. In particular, ADR is not an effective means to:

– Resolve disputes between parties who possess greatly different levels of power or authority;

– Resolve cases that require public sanctions;

– Resolve disputes involving disputants or interested parties who refuse to participate, or cannot participate, in the ADR process.

Especially for the contextual focus of this research work, ADR is inappropriate to resolve multi-party cases in which some of the parties or stakeholders do not participate or have nothing to say (such as minorities, womens, nomadic tribes, etc.).

Another ADR system oftentimes used on the socio-political and international level is Consensus-based negotiation. Consensus decision-making requires that everyone agrees to a decision, and not just a

majority, as occurs in majority-rule processes. In consensus-based processes, people work together to develop an agreement that is good enough (but not necessarily perfect) for everyone at the table to be willing to accept (Conflict Research Consortium, 1998).

We will come back to other forms of ADR systems brought forth by the legal field of conflict resolution, but let’s go back to what mediation is certainly not.

2. Mediation is not …

Mediation is not an attempt to attribute or allocate a faultive behavior. Assessment of fault may or may not be done by judges (or arbitrators), but it will not be done by mediators or it will not be found in a final agreement co-drafted by a mediator. Mediation is not a means to declare winner or loser. Mediation does not produce a one-sided victory or constant separation. It produces dialogue and permanent cease-fire.

Mediation is not designed to establish another picture of truth – whatever that might be. Fact-finding is a procedure within the litigation process in court or in arbitration. Mediation takes a look at the present, while invoking the past and preparing the future.

Mediation is not a process to find out what a mediator thinks or not. The mediator’s role is to guide the conflicting parties towards a truce. If a truce is not achieved and mediation is halted, sometimes the mediation may be asked to give an opinion on what could or should be done. Although this is rare in certain instances, other contexts or settings might require a mediator to render an opinion thus testing the critical incidents for a potential agreement. In international mediation, the mediator is usually more partial and active than in traditional, domestic-based mediation.

Although a mediation team might be established to run a multi-party negotiation process and hence be constituted out of experts and advisors, there are usually no witnesses or experts in mediation. This is in respect to one principle of mediation, where the parties are participating on a voluntary and self-determined basis.

Another principle relates to the fact that no recording is made of the proceedings. Mediation is confidential and private. What happens in the mediation room stays in the mediation room. Mediation is not to review or appeal. Either it produces a settlement or it does not. There are current cases in civil law investigating into a mediator’s refusal to appear as a witness. We will get back to those legal cases at a later stage.

In most instances, mediation is referred to as a means of settling a dispute outside of the court system. Yet, the question still remains: What can be done better through the use of mediation than continuing the dispute?